Anderton v Clwyd County Council; Bryant v Pech and Another; Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd

JurisdictionEngland & Wales
JudgeLord Justice Mummery
Judgment Date03 July 2002
Neutral Citation[2002] EWCA Civ 933
Docket NumberCase Nos: B1/2001/1790;1790/A;1790/B B1/2002/0299/0299B B1/2001/2700 B1/2002/0591 A2/2001/2047
CourtCourt of Appeal (Civil Division)
Date03 July 2002
Between
Rhiannan anderton
Appellant
Clwyd County Council
Respondent
BRYANT
and
MIKE BEER TRANSPORT
THE HOME OFFICE
and
JOHN DORGAN
TINA WENDY CHAMBERS
and
SOUTHERN DOMESTIC ELECTRICAL SERVICES LIMITED
GREGORY CUMMINS
and
SHELL INTERNATIONAL MANNING SERVICES

[2002] EWCA Civ 933

Before

Lord Phillips of Worth Matravers, Mr

Lord Justice Mummery and

Lady Justice Hale

Case Nos: B1/2001/1790;1790/A;1790/B

B1/2002/0299/0299B;B1/2001/2700;B1/2002/0591; A2/2001/2047

B1/2002/0299/0299B

B1/2001/2700

B1/2002/0591

A2/2001/2047

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

FROM MANCHESTER COUNTY COURT

HIS HONOUR JUDGE HOLMAN

FROM BRENTFORD COUNTY COURT

HIS HONOUR MARCUS EDWARDS

FROM THE CARDIFF COUNTY COURT

DISTRICT JUDGE D WYN REES

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

THE HON MR JUSTICE McCOMBE

Master Ungley

FROM THE QUEEN'S BENCH DIVISION

THE HON MR JUSTICE GRAY

Master Murray

MR NICHOLAS BOWEN (instructed by Teacher Stern Selby for the Appellant)

MR EDWARD BISHOP (instructed by Berrymans Lace Mawer for the Respondent)

And four other appeals whose names appear on the following pages

MR SIMON MONTY (instructed by Lyons Wilson for the Appellant)

MR ADRIAN PALMER QC (instructed by Hugh James Ford Simey for the Respondent)

MISS CHRISTINA MICHALOS (instructed by the Treasury Solicitor for the Appellant)

MR BARRY COULTER (instructed by JR Jones for the Respondent)

MR NICHOLAS VINEALL (instructed by Robertsons for the Appellant)

MR ADRIAN PALMER QC (instructed by Hugh James Ford Simey for the Respondent)

MR JOHN ROSS QC and MR JULIAN WATERS (instructed by Dawson & Co for the Appellant)

MR TIMOTHY YOUNG QC and MR EDWIN BUCKETT (instructed by Hill Taylor Dickinson for the Respondent)

Lord Justice Mummery

This is the judgment of the court.

A. Introduction

The Five Appeals

1

The five appeals all concern the construction and application of provisions in Part 6 (Service of Documents) and Part 7 (How to Start Proceedings-The Claim Form) of the Civil Procedure Rules (CPR) relating to the service of a claim form. Four of the appeals (Anderton, Bryant, Chambers and Dorgan) were heard together. They are about the effect of the provisions in rule 6.7 for the calculation of the "deemed day of service" of a claim form sent by first class post or by fax and the scope of the discretion under rule 6.9 to dispense with service of the claim form in the light of (a) the recent decision of this court in Godwin v. Swindon Borough Council [2001] 4 All ER 641 (Pill and May LJJ and Rimer J) ('Godwin'); and (b) section 3 of the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights. The fifth appeal (Cummins) was heard separately, following immediately on the first four appeals. It is about the discretion to grant permission to serve a claim form out of the jurisdiction within the period of 6 months allowed for service by rule 7.5(3).

Non-compliance with Rules for Service: Warnings

2

The consequences of failure to comply with the rules governing service of a claim form are extremely serious for a claimant and for his legal advisers. The situation becomes fraught with procedural perils when a claimant or his solicitor leaves the service of a claim form, which has been issued just before the end of the relevant statutory limitation period, until the last day or two of the period of 4 months allowed for service by rule 7.5(2) or, even worse, almost to the end of an extension of time granted by the court. If the claim form is then served by first class post, by fax or in another manner permitted by the CPR there is high risk, demonstrated by Godwin and by the cases under appeal, of a successful application by the defendant to strike out the claim on the ground of non-compliance with the rules and of the cause of action then being statute barred. The risks never need to be run: they can easily be avoided by progressing the proceedings in accordance with the spirit and letter of the CPR. Now that the disputed interpretations of the CPR have been resolved by Godwin and by this judgment, there will be very few (if any) acceptable excuses for future failures to observe the rules for service of a claim form. The courts will be entitled to adopt a strict approach, even though the consequences may sometimes appear to be harsh in individual cases.

3

Later in this judgment we explain our conclusions on the contested points of interpretation, and we state the facts and outcomes of the individual cases under appeal. In summary the legal position is that:—

(a) service of a claim form, which has been sent by first class post or fax before the end of the period for service, may, as a result of "deemed service" under rule 6.7, occur after the end of that period;

(b) the fact that the claim form has actually been received by, and come to the attention of, the defendant or his solicitor through the post, by fax or by means other than personal service within the period of 4 months allowed by rule 7.5(2) is legally irrelevant to ascertaining the day of service, as deemed by rule 6.7;

(c) if an application for an extension of time is issued by the claimant after the end of the period of service, the court will rarely have power under rule 7.6(3) to grant an extension of time and only in the most exceptional circumstances will it be proper to exercise its discretion under rule 6.9 to dispense with service;

(d) the limitation period applicable to the cause of action may by then have run out, so that the claimant cannot issue and serve fresh proceedings against the defendant; and

(e) the claimant may have suffered substantial economic loss in consequence of the claim becoming statute barred, for which the only possible remedy left, years after the original cause of action arose, is proceedings for professional negligence against his legal adviser. That claim may be contested. Even more substantial costs are bound to be incurred on both sides. If fought, the case will inevitably take even longer to come to trial.

B. The Relevant Provisions of the Civil Procedure Rules

Time for service of a claim form

4

Under rule 7.5(1) and (2) the general rule is that, after a claim form has been issued, it must be served on the defendant within 4 months after the date of issue.

5

Where the claim form is to be served out of the jurisdiction the period for service is 6 months: rule 7.5(3). Special provisions about service of the claim form out of the jurisdiction and the circumstances in which the permission of the court is or is not required are set out in Section III of Part 6 (rules 6.17 to 6.31).

Extension of time for serving a claim form

6

Under rule 7.6 the claimant may apply for an order extending the period within which the claim form may be served. The general rule is that an application to extend the time for service must be made within the period for serving the claim form specified by rule 7.5 or, where an order has been made under rule 7.6, within the extended period for service specified by that order.

7

Only in restricted circumstances can the court grant an extension of time for service on an application made after the end of the specified period: rule 7.6(3). On such an application, which must be supported by evidence, the court may make:

"….such an order only if—

the court has been unable to serve the claim form; or

(b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and,

(c) in either case, the claimant has acted promptly in making the application."

Methods of Service

8

Under rule 6.2 a document may be served by any of the specified methods including, as well as personal service in accordance with rule 6.4, first class post and fax. Under rule 6.8 the court may make an order permitting service by an alternative method where it appears to the court that there is a good reason to authorise service by a method not permitted by the rules. (Such an order may be made prospectively, but not retrospectively: Elmes v. Hygrade Food Products PLC [2001] EWCA Civ. 121).

Deemed Service

9

Rule 6.7(1) tabulates in two columns the method of calculating the day of service. In the right hand column there is the "Deemed day of service", which is attached to the corresponding "Method of service" in the left hand column. Five methods of service are covered. The provisions apply to a document served in accordance with the rules or any relevant practice direction. The two methods of service relevant to the appeals are first class post and fax.

10

In the case of first class post the deemed day of service of a document is the second day after it was posted.

11

In the case of fax the deemed day of service differs according to whether it is transmitted on a "business day before 4 p.m.", in which case the deemed day of service is on that day, and in any other case, in which case the deemed day of service is on "the business day" after the day on which it is transmitted.

12

Rule 6.7(2) provides that

"If a document is served personally—

(a) after 5 p.m., on a business day; or

(b) at any time on a Saturday, Sunday or a Bank Holiday,

it will be treated as being served on the next business day."

13

(In rule 6.7(3) "business day" in this rule is defined as meaning any day except Saturday, Sunday or a bank holiday; and "bank holiday" includes Christmas Day and Good Friday).

Calculation of Period of Time

14

Rule 2.8 in Part 2 (Application and Interpretation of the Rules) is about the calculation of any period of time for doing any act which is specified by the rules or by a practice direction or by a judgment or order of the court. Under rule 2.8(4) where the...

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